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Weekly Update Volume 31, Issue 5

The Third Circuit held that a natural gas storage facility operator may go forward with its federal preemption action against a state environmental agency in which it seeks a declaratory judgment enjoining the agency from revisiting its issuance of various state permits to the operator. After the operator's application to FERC to construct the facility was challenged by competing operators, FERC examined 30 issues raised by the concerned parties. While these FERC proceedings were ongoing, the operator applied for and received the necessary state permits from the state environmental agency. FERC subsequently decided to issue the operator a certificate of public convenience and necessity. The competitors then appealed the issuance of the state permits, raising the same 30 issues that had been advanced before FERC. The operator, therefore, filed a complaint in district court seeking to enjoin the state agency from revisiting the permit review process, but the claim was dismissed as unripe. Without a declaratory judgment, however, the state agency's process of reviewing the permit will continue, and that process itself is the alleged harm. Although the agency has not stated whether it will review the 30 issues, it has not disclaimed the right to review them and, therefore, its interests are adverse to those of the operator. Additionally, a declaratory judgment in this case would conclusively establish whether the state agency may base its permit decision on a consideration of the 30 issues. There is no need for additional factual discovery as the issue of whether the state proceedings are preempted is a legal one. Moreover, the operator would suffer a hardship were a declaratory judgment not issued. Further, federal preemption would likely be found in this case, and in bringing the present action the operator was not circumventing FERC's rehearing process. The case, therefore, was reversed and remanded. NE Hub Partners, L.P. v. CNG Transmission Corp., No. 00-3387 (3d Cir. Jan. 29, 2001) (24 pp.).

The Ninth Circuit held that an environmental group had standing under NEPA to challenge the adequacy of the U.S. Navy's EIS regarding the future use of the Long Beach Naval Station in California, but that the group did not establish taxpayer standing sufficient to bring their state law claims in federal court. At the time the group initiated the action, portions of the naval station served as a habitat for several bird species and two federally endangered species. After announcing that the station would be closed, the Navy issued an EIS and decided to convert the station into a marine container terminal. In accordance with this plan, the trees at the station were destroyed and the shallow water habitat was dredged. Nevertheless, the group's claim is not moot because effective relief may still be available in the form of alternative reuse plans for the station and mitigation to damage to the birds' habitat. Moreover, the group has standing to bring its claim because it has demonstrated a sufficiently concrete interest to establish injury-in-fact. The removal of the trees and shallow water habitat at the naval station directly and concretely affected the group's recreational and aesthetic interests. It is immaterial whether the group has a legal right of access to the naval station because their desire to view the birds from publicly accessible locations outside the station is an interest sufficient to confer standing. Similarly, it is irrelevant whether the birds have been injured because the relevant showing for standing is injury to the plaintiff, not injury to the environment. Further, the group has standing even though they cannot establish that a revised EIS would result in a different reuse plan for the station. The group, however, did not establish that they have standing as taxpayers to bring their state law "waste of government funds" claims in federal court because they failed to show a direct pocketbook injury resulting from the station's destruction and the terminal's construction. Cantrell v. City of Long Beach, No. 98-56940 (9th Cir. Feb. 5, 2001) (13 pp.).

The Ninth Circuit held that seafood processors who settled with an oil company in connection with the Exxon Valdez oil spill before the mandatory punitive damages class was certified are entitled to share in the allocation of punitive damages judgment even though the processors assigned to the oil company their future individual claims to punitive damages so that the company could pursue the assigned portion in its own name and for its own benefit. The court previously held in In re Exxon Valdez, 229 F.3d 790 (9th Cir. 2000), that the oil company may enter into a "cede back" settlement agreement that permits it to recoup damages assessed against itself. The fact that the oil company received an "assignment" in this situation rather than an agreement to "cede back" does not render the two cases materially different. Both devices performed the identical function, accomplished the same result, and encouraged settlements in this mass tort litigation. The district court, therefore, erred in refusing to permit the company to share in the punitive damage award. In re Exxon Valdez, No. 99-35898 (9th Cir. Feb. 8, 2001) (7 pp.).

The First Circuit upheld the grant of a special zoning permit for the construction of a wireless telecommunications tower in the steeple of a historic church in Wellfleet, Massachusetts. Although the town's planning board concluded that the wireless communications company had satisfied all the criteria of the town's zoning bylaws, the board nevertheless denied the permit. The company brought suit against the board in federal district court and the case was settled with one of the terms being the board's issuance of the permit. Once the permit was issued, a citizen group brought suit against the board claiming that in issuing the special permit pursuant to the consent agreement, the board violated state zoning law by granting a previously denied permit in the absence of public notice and hearing. The board, however, did not err in issuing the permit without further public notice and hearing. The TCA, which provides a cause of action in this setting, places a premium on the speedy resolution of such proceedings. Additionally, in a situation such as this, when the board knows that its earlier denial of a special permit violated the TCA, it is reasonable for the board to settle with the applicant on the terms most favorable to the town, rather than to engage in litigation doomed from the start. Further, the citizens failed to identify any practical benefit to sending the matter back to the planning board to hold a hearing destined to result in the issuance of the special permit. Moreover, the TCA preempts the state zoning law that requires a new round of public notice and hearing before a previously denied permit can be issued. The citizens' other claims were similarly without merit. Brehmer v. Planning Board of the Town of Wellfleet, No. 99-2185 (1st Cir. Feb. 6, 2001) (8 pp.).

The Fourth Circuit held that a scrap metal shredder who anonymously funded a citizen group to challenge the construction of a second scrap metal shredder in Baltimore, Maryland, is immunized by the Noerr-Pennington doctrine from antitrust liability. The citizen group protested the issuance of a construction permit to the second scrap metal finisher, but the permit was granted. A representative of the first scrap metal shredder then anonymously offered financial support to the citizen group to appeal the permit approval, and the citizen group accepted the funding. The group later learned who was funding their litigation after an errant fax was sent to the wrong person. The citizen group's suit was ultimately dismissed for lack of standing. The second scrap metal finisher then sued the first finisher alleging violations of antitrust laws. However, the Noerr-Pennington doctrine guarantees citizens the right to petition the government and the courts for redress without fear of antitrust liability. Further, the first scrap metal finisher is not stripped of Noerr-Pennington immunity by any exception to the doctrine. The sham exception to the doctrine does not apply because the litigation was not objectively baseless; an objective litigant could reasonably have expected to achieve success on the merits. The fact that a third party funded the litigation does not govern the analysis of the objective merit of a lawsuit. Similarly, the fraud exception to the Noerr-Pennington doctrine does not apply because none of the frauds alleged by the second scrap metal shredder rise to the level of fraud against the courts. Baltimore Scrap Corp. v. David J. Joseph Co., No. 00-1141 (4th Cir. Jan. 18, 2001) (11 pp.).

The EPA Environmental Appeals Board affirmed a presiding officer's determination that EPA Region III failed to prove that a company had violated FIFRA with regard to two of its products. EPA brought suit against the company alleging 12 violations of FIFRA, and the presiding officer held that EPA had failed to meet its burden regarding 6 allegations that the company sold or distributed unregistered pesticides. EPA failed to establish that the products at issue were pesticides under FIFRA. An examination of the products' labels and literature is appropriate here, but the language relied upon is inconclusive and does not, without more, support a finding of liability. Additionally, the language in the general product sheet does not set up a clear test to determine when the company's products are pesticides, as argued by EPA. Further, EPA did not establish by a preponderance of the evidence that the company made a pesticidal claim, express or implied, when it listed a certain compound as an active ingredient in each of the two products. In re Bullen Cos., FIFRA Appeal No. 99-14 (EPA EAB Feb 1, 2001) (23 pp.).

New York's highest court held that New York City must obtain state legislative approval before it can build a water filtration plant at a city park. Legislative approval is required when there is a substantial intrusion on parkland for a non-park purpose, regardless of whether there has been an outright conveyance of title or whether the parkland is ultimately to be restored. Here, the plant is a non-park use and the public will be deprived of value park services for at least five years while plant construction proceeds. Although the plant plainly serves an important public service, dedicated park areas in New York are impressed with a public trust for the benefit of the people of the state. Thus, their use for other than park purposes requires the direct and specific approval of the state legislature. The decision arose from a certified question by the Second Circuit. Friends of Van Cortlandt Park v. State, No. 20 (N.Y. Feb. 8, 2001) (11 pp.).

The California Supreme Court held that an insurer's duty to indemnify an insured under a standard comprehensive general liability insurance policy did not extend to fines imposed on the insured by state administrative agencies for groundwater contamination cleanup and abatement at one of the insured's sites, but was limited to money ordered by a court. In Foster-Gardner, Inc. v. National Union Fire Insurance Co., 18 Cal. 4th 857 (1998), the California Supreme Court held that an insurer's duty to defend an insured in a suit seeking damages was limited to a civil action prosecuted in a court and did not extend to a proceeding before an administrative agency pursuant to an environmental statute. Because the duty to defend is broader than the duty to indemnify and the duty to defend does not extend beyond a civil action prosecuted in court, the duty to indemnify is not broad enough to extend beyond money ordered by a court. Therefore, the insurer does not need to indemnify the insured for fines imposed by the state administrative agencies. Additionally, in its language imposing the duty to indemnify, the policy is clear that it is limited to money ordered by a court. Certain Underwriters at Lloyd's, London v. Superior Court of Los Angeles County, No. S084057 (Cal. Feb. 1, 2001) (50 pp.).

A Washington state appellate court held that the Trails Act, which allows a state, local, or private entity to temporarily convert inactive rail corridors into trails until they are again used for railroads, preempts an individual's state-law just compensation claim and, therefore, the just compensation claim must be brought in the U.S. Court of Federal Claims under the Tucker Act. Skagit County, Washington, acquired a railroad's right-of-way to property for use as a public trail under the Trails Act. Owners of the land underlying the corridor petitioned the Surface Transportation Board (STB), the agency in charge of regulating railroad property, to reopen the abandonment proceedings to the right-of-way claiming that they had full possessory rights to the land and were entitled to compensation under state law for the county's alleged taking of their property. The STB found no reason to reopen the abandonment proceedings. The landowners then brought their claim for just compensation in state court. The Trails Act, however, preempts their state-law claim. When Congress passed the Trails Act, it deemed interim trail use to be a discontinuance rather than abandonment, effectively preventing property interests from reverting under state law. Moreover, the STB retains jurisdiction during the interim trail use, and as long as that is the case, state law is preempted. The landowners, therefore, must bring their just compensation claim under the Tucker Act in the U.S. Court of Federal Claims. Good v. Skagit County, No. 45436-6-I (Wash. Ct. App. Jan. 29, 2001) (6 pp.).

EPA temporarily delayed for 60 days the effective date of the rule entitled Amendments to Standards of Performance for New Stationary Sources; Monitoring Requirements, published on August 10, 2000 (65 Fed. Reg. 48914), which concerned revisions to performance standard monitoring requirements that clarified and updated requirements for source owners and operators who must install and use continuous stack or duct opacity monitoring equipment. 66 FR 9034 (2/6/01).

The Forest Service temporarily delayed for 60 days the effective date of the rule entitled Special Areas; Roadless Area Conservation, published on January 12, 2001 (66 Fed. Reg. 3244), which concerned the establishment of prohibitions on road construction, road reconstruction, and timber harvesting in inventoried roadless areas on National Forest System lands. 66 FR 8899 (2/5/01).

PESTICIDES:

EPA announced the availability of a guidance document that intends to streamline the acute toxicity review and classification process for certain granular pesticide products, including those products that contain granular fertilizers. 66 FR 9328 (2/7/01).

TRANSPORTATION:

DOT's Research and Special Programs Administration (RSPA) temporarily delayed for 60 days the effective date of the final rule titled Pipeline Safety: Areas Unusually Sensitive to Environmental Damage, published on December 21, 2000 (65 Fed. Reg. 80530), which defined drinking water and ecological areas that are unusually sensitive to environmental damage if there is a hazardous liquid pipeline release. 66 FR 9532 (2/8/01).

RSPA temporarily delayed for 60 days the effective date of the rule titled Pipeline Safety: Pipeline Integrity Management in High Consequence Areas (Hazardous Liquid Operators with 500 or More Miles of Pipelines), published on December 1, 2000 (65 Fed. Reg. 75378), which required operators of hazardous liquid pipelines to establish and implement plans to assess the integrity of pipeline in areas in which a failure could impact certain populated and environmentally sensitive areas. 66 FR 9532 (2/8/01).

FWS temporarily delayed for 60 days the effective date of the document entitled Policy on Maintaining the Biological Integrity, Diversity, and Environmental Health of the National Wildlife Refuge System; Notice, published on January 16, 2001, which was intended to guide personnel of the National Wildlife Refuge System in implementing the clause of the National Wildlife Refuge System Improvement Act of 1997 that directs the Secretary of the Interior to ensure that the "biological integrity, diversity, and environmental health" of the System is maintained. 66 FR 9593 (2/8/01).

U.S. v. Goodyear Tire & Rubber Co., No. 6:96-cv-07215 (W.D.N.Y. Jan. 19, 2001) (a settling CERCLA defendant must implement EPA's selected remedy for operable units 2 and 3 at the Forest Glen Subdivision Superfund site in Niagara County, N.Y., must pay $8.6 million in past U.S. response costs, must pay all future and interim U.S. response costs, and must pay $445,000 in natural resource damages; three other CERCLA defendants must pay a total of $81,000 in response costs), 66 FR 8983 (2/5/01);

U.S. v. A&D Recycling, Inc., No. 1:CV-99-1332 (M.D. Pa. Jan. 22, 2001) (a settling CERCLA defendant must pay $33,600 in past U.S. response costs incurred at the Jack's Creek Superfund site in Mifflin County, Pa.; the party was originally supposed to pay $58,526.44, but the amount was reduced due to a mutual mistake of fact in the original degree as to the amount of material that defendant sent to the site), 66 FR 9595 (2/8/01);

U.S. v. Nassau Metals Corp., No. 3:96-CV-562 (M.D. Pa. Dec. 20, 2000) (a settling CERCLA defendant must pay $77,000 in past U.S. response costs incurred at the C&D Recycling, Inc., site in Luzerne County, Pa., must sell the site, and must pay the United States proceeds from that sale), 66 FR 9597 (2/8/01);

S. 252 (Voinovich, R-Ohio) (CWA) would amend the CWA to authorize appropriations for state water pollution control revolving funds. 147 Cong. Rec. S1062 (daily ed. Feb. 6, 2001). The bill was referred to the Committee on Environment and Public Works.

S. 254 (Wyden, D-Or.) (Little Sandy River) would provide further protections for the watershed of the Little Sandy River as part of the Bull Run Watershed Management Unit, Oregon. 147 Cong. Rec. S1062 (daily ed. Feb. 6, 2006). The bill was referred to the Committee on Energy and Natural Resources.

S. 259 (Bingaman, D-N.M.) (DOE) would authorize funding DOE to enhance its mission areas through Technology Transfer and Partnerships for fiscal years 2002 through 2006. 147 Cong. Rec. S1063 (daily ed. Feb. 6, 2001). The bill was referred to the Committee on Energy and Natural Resources.

S. 266 (Smith, R-Or.) (Native American lands) would address the use of the trust land and resources of the Confederated Tribes of the Warm Springs Reservation of Oregon. 147 Cong. Rec. S1063 (daily ed. Feb. 6, 2001). The bill was referred to the Committee on Indian Affairs.

S. 285 (Wyden, D-Or.) (CWA) would amend the CWA to authorize the use of state revolving loan funds for construction of water conservation and quality improvements. 147 Cong. Rec. S1218 (daily ed. Feb. 8, 2001). The bill was referred to the Committee on Environment and Public Works. 2/8 s1218

S. 287 (Feinstein, D-Cal.) (electric utilities) would direct FERC to impose cost-of-service based rates on sales by public utilities of electric energy at wholesale in the western energy market. 147 Cong. Rec. S1218 (daily ed. Feb. 8, 2001). The bill was referred to the Committee on Energy and Natural Resources.

S. 301 (Thomas, R-Wyo.) (NEPA) would amend NEPA to require that federal agencies consult with state agencies and county and local governments on EISs. 147 Cong. Rec. S1218 (daily ed, Feb. 8, 2001). The bill was referred to the Committee on Environment and Public Works.

H.R. 396 (Pickering, R-Miss.) (agriculture) would amend the emergency crop loss assistance provisions of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2001, to respond to the severe economic losses being incurred by crop producers, livestock and poultry producers, and greenhouse operators as a result of the sharp increase in energy prices. 147 Cong. Rec. H218 (daily ed. Feb. 7, 2001). The bill was referred to the Committee on Agriculture.

H.R. 397 (Gallegly, R-Cal.) (animal conservation) would conserve global bear populations by prohibiting the importation, exportation, and interstate trade of bear viscera and items, products, or substances containing or labeled or advertised as containing, bear viscera, and for other purposes. 147 Cong. Rec. H218 (daily ed. Feb. 7, 2001). The bill was referred; to the Committees on Resources, International Relations, and Ways and Means.

H.R. 398 (Andrews, D-N.J.) (pesticides; drinking water) would make supplemental appropriations for fiscal year 2001 to ensure the inclusion of commonly used pesticides in state source water assessment programs. 147 Cong. Rec. H218 (daily ed. Feb. 7, 2001). The bill was referred to the Committee on Appropriations.

H.R. 400 (Hastert, R-Ill.) (national historic sites) would authorize the Secretary of the Interior to establish the Ronald Reagan Boyhood Home National Historic Site. 147 Cong. Rec. H218 (daily ed. Feb. 7, 2001). The bill was referred to the Committee on Resources.

H.R. 416 (Andrews, D-N.J.) (electric utilities; environmental funding) would establish a fund for environmental priorities to be funded by a portion of the consumer savings resulting from retail electricity choice. 147 Cong. Rec. H219 (daily ed. Feb. 7, 2001). The bill was referred to the Committees on Energy and Commerce, and Transportation and Infrastructure.

H.R. 427 (Blumenauer, D-Or.) (water resources) would provide further protections for the watershed of the Little Sandy River as part of the Bull Run Watershed Management Unit in Oregon. 147 Cong. Rec. H219 (daily ed. Feb. 7, 2001). The bill was referred to the Committees on Resources, and Agriculture.

H.R. 434 (Doolittle, D-Cal.) (Emigrant Wilderness; hydroelectric power) would direct the Secretary of Agriculture to enter into a cooperative agreement to provide for retention, maintenance, and operation, at private expense, of the 18 concrete dams and weirs located within the boundaries of the Emigrant Wilderness in the Stanislaus National Forest, California. 147 Cong. Rec. H219 (daily ed. Feb. 7, 2001). The bill was referred to the Committee on Resources.

H.R. 443 (Filner, D-Cal.) (electric utilities) would amend the Internal Revenue Code of 1986 to impose a windfall profit tax on wholesale electric energy sold in the Western System Coordinating Council. 147 Cong. Rec. H220 (daily ed. Feb. 7, 2001). The bill was referred to the Committee on Ways and Means. 2/7 h220

H.R. 447 (Gibbons, R-Nev.) (public lands) would require the Secretary of the Interior to make reimbursement for certain damages incurred as a result of bonding regulations adopted by the BLM on February 28, 1997, and subsequently determined to be in violation of federal law. 147 Cong. Rec. H220 (daily ed. Feb. 7, 2001). The bill was referred to the Committee on Resources.

H.R. 472 (Radanovich, R-Cal.) (ESA) would amend the ESA to exempt the Woodrow Wilson Bridge project from certain provisions of that Act and allow the bridge and activities elsewhere to proceed in compliance with that Act. 147 Cong. Rec. H221 (daily ed. Feb. 7, 2001). The bill was referred to the Committee on Resources.

H.R. 473 (Rivers, D-Mich.) ( North American Free Trade Agreement) would assess the impact of the North American Free Trade Agreement on domestic job loss and the environment. 147 Cong. Rec. H221 (daily ed. Feb. 7, 2001). The bill was referred to Committee on Ways and Means.

H.R. 478 (Shows, D-Miss.) (agriculture) would require the Secretary of Agriculture to make emergency loans under the Consolidated Farm and Rural Development Act and to provide emergency assistance to agricultural producers whose energy costs have escalated sharply. 147 Cong. Rec. H221 (daily ed. Feb. 7, 2001). The bill was referred to the Committee on Agriculture.

H.R. 479 (Shows, D-Miss.) (agriculture) would authorize the Secretary of Agriculture to make emergency loans under the Consolidated Farm and Rural Development Act to greenhouse farmers whose energy costs have escalated sharply. 147 Cong. Rec. H221 (daily ed. Feb. 7, 2001). The bill was referred to the Committee on Agriculture.

H.R. 480 (Shows, D-Miss.) (agriculture) would require the Secretary of Agriculture to make emergency loans under the Consolidated Farm and Rural Development Act and to provide emergency assistance to greenhouse farming operations whose energy costs have escalated sharply. 147 Cong. Rec. H21 (daily ed. Feb. 7, 2001). The bill was referred to the Committee on Agriculture.

H.R. 483 (Walden, R-Or.) (Native American lands) would address the use of the trust land and resources of the Confederated Tribes of the Warm Springs Reservation of Oregon. 147 Cong. Rec. H221 (daily ed. Feb. 7, 2001). The bill was referred to the Committee on Resources.

H.R. 529 (Andrews, D-N.J.) (highways; recycled materials) would authorize the Secretary of Transportation to require the use of recycled materials in the construction of federal-aid highway projects. 147 Cong. Rec. H252 (daily ed. Feb. 8, 2001). The bill was referred to the Committee on Transportation and Infrastructure.

H.R. 530 (Andrews, D-N.J.) (recycled materials; highways) would amend title 23, United States Code, to require the allocation of surface transportation program funds for the purchase of recycled materials. 147 Cong. Rec. H253 (daily ed. Feb. 8, 2001). The bill was referred to the Committee on Transportation and Infrastructure.

H.R. 541 (Kelly, R-N.Y.) (regulatory reform) would amend chapter 35 of title 44, United States Code, popularly known as the Paperwork Reduction Act, to minimize the burden of federal paperwork demands upon small businesses, educational and nonprofit institutions, federal contractors, state and local governments, and other persons through the sponsorship and use of alternative information technologies. 147 Cong. Rec. H252 (daily ed. Feb. 8, 2001). The bill was referred to the Committees on Government Reform, and Small Business.

H.R. 542 (Kelly, R-N.Y.) (regulatory reform) would amend provisions of law enacted by the Small Business Regulatory Enforcement Fairness Act of 1996 to ensure full analysis of potential impacts on small entities of rules proposed by certain agencies. 147 Cong. Rec. H252 (daily ed. Feb. 8, 2001). The bill was referred to the Committees on the Judiciary, and Small Business.

H.R. 553 (Young, R-Alaska) (fisheries) would amend the Magnuson-Stevens Fishery Conservation and Management Act to improve implementation of the western Alaska community development quota program. 147 Cong. Rec. H253 (daily ed. Feb. 8, 2001). The bill was referred to the Committee on Resources.

Water Quality Management Planning-Final rules implement provisions of Section 208 of the federal Clean Water Act regarding development of regional water quality management plans (generally referred to as 208 plans) and responsibilities of regional water quality management planning agencies (generally the regional councils of government). Rules also require the regional water quality management planning agency to determine conformance of any new or expanding sewage treatment facility with the 208 plan. Rules became effective Jan. 2. See http://www.adeq.state.az.us/lead/oac/download/mgmtplan.pdf

Water Quality Protection Fees-Final rules revise fee schedules for all water quality permits and services, and set flat fees for the general permits established in the Unified Water Quality Permit rule. Rules effective Jan. 2. See http://www.adeq.state.az.us/lead/oac/download/feerule.pdf

Unified Water Quality Permits-Consolidates the existing Sewerage System rules into the Aquifer Protection Permit program, eliminating duplicate permits and streamlining processes; establishes Best Available Demonstrated Control Technology for sewage treatment facilities, including the requirement that new sewage treatment facilities treat wastewater so that it is pathogen free and meets the drinking water standard for nitrate. Establishes a new general permit framework, including 20 general permits for certain industrial, mining, and wetlands facilities; sewage collection systems; and other miscellaneous discharges. Establishes 22 general permits providing design, installation and O&M standards for conventional and alternative on-site wastewater treatment systems up to 24,000 gallons per day design flow. Rules effective Jan. 1. See http://www.adeq.state.az.us/lead/oac/download/apprule.pdf

Direct Use of Reclaimed Water-Simplifies the permitting process for reuse of reclaimed water thereby encouraging its use and conserving potable resources for human consumption and domestic purposes. Allows end users to qualify for a general permit that relies on management practices for the application and use of reclaimed water. Provides general permitting options for reclaimed water agents responsible for multiple end users and reclaimed water blending facilities. Provides individual reclaimed water permits for situations that do not qualify for a general permit. Provides best management practices for household reuse of gray water. Rules effective Jan. 16. See http://www.adeq.state.az.us/lead/oac/download/direct.pdf

Reclaimed Water Quality Standards-Establishes five classes of reclaimed water expressed as a combination of minimum treatment requirements and numeric reclaimed water quality criteria. Customizes each class of reclaimed water based on potential risk to human health. Prescribes lower water quality classes only in situations with increasingly greater restrictions to human access. Requires nitrogen management practices for classes of reclaimed water containing a total nitrogen concentration of 10 mg/l. (i.e., the drinking water standard and aquifer water quality standard). Rules effective Jan. 22. See http://www.adeq.state.az.us/lead/oac/download/stand.pdf

Final Regulations-Voluntary Best Management Practices for Grazing Activities

Four voluntary best management practices were developed by the Grazing Best Management Practices Advisory Committee for persons engaging in livestock grazing. The practices, ranging from managing grazing activities, installing rangeland improvements, and implementing land treatments, have the goal of maintaining soil cover and preventing accelerated erosion, nitrogen discharges, and bacterial impacts to surface waters above natural background amounts to help achieve Surface Water Quality Standards. These voluntary standards have been submitted to the Governor's Regulatory Review Council for review at their April 3 meeting. See http://www.adeq.state.az.us/lead/oac/stat.html#grazing

Final Regulations-Voluntary Remediation Program Interim Fee Rules

The Voluntary Remediation Program provides an opportunity for program participants to voluntarily remediate contaminated sites and to obtain the department's review and approval of remedial actions. If remediation levels and controls meet statutory requirements, participants may obtain a determination that the department will not take or require further action at the site. These interim rules were published in the Arizona Administrative Register on Feb. 9, 2001, and became effective that date. See http://www.adeq.state.az.us/environ/waste/capdev/voluntary/index.html#rules

Board will discuss possible emergency regulations for the transfer/processing of putrescible waste. Existing regulations provide that an activity that only receives material that has been separated for reuse prior to receipt, and the residual amount of solid waste in this material is less than 10% of the amount of separated for reuse material received by weight, is not subject to the Board’s transfer/processing operation and facility regulations. These emergency regulations would clarify that all "putrescible waste" received as separated for reuse material counts toward the "residual" amount. Activities that receive materials with a residual amount equal to or greater than 10% would be subject to the Board’s transfer/processing operation and facility regulations.

The Board will consider a staff request to initiate a 45-day comment period to address revisions to the waste tire regulations. Assembly Bill (AB) 1843 (Brown, Statutes of 1989) established the waste tire program and required the IWMB to adopt emergency and final regulations for permitting of waste tire storage facilities. The California Integrated Waste Management Board (Board) adopted emergency regulations on June 26, 1991 and final regulations on August 25, 1993. On May 9, 1996, the Board’s Waste Tire Hauler Regulations became effective pursuant to Senate Bill (SB) 744 (1993 statutes). On January 29, 1998 the Board adopted emergency regulations to remove certain exclusions from the regulations regarding who needs to acquire a waste tire facility permit. These emergency regulations became final this past year. AB 117 (Escutia) was signed into law in 1998 requiring the Board to prepare a report to the legislature on the current waste tire program and to make recommendations by June 30, 1999, for needed changes. The Board adopted the final version of the report "California Waste Tire Program Evaluation and Recommendations" (Tire Report) at its June 22, 1999 meeting. Since the passage of AB 1843 (1989 statutes) and SB 744 (1993 statutes) the Board has been regulating the storage, disposal and hauling of waste tires. This last year SB 876 (Escutia) was passed by the Legislature to make changes to the tire management statutes in order to better serve the regulated community and to protect public health and safety and the environment. CIWMB staff has proposed changes in the existing regulations to implement, interpret and make specific the provisions of SB 876, as well as, implementing certain recommendations from the AB 117 Tire Report.

The Board will also discuss proposed regulations for compostable organic materials handling operations and facilities. The draft regulations would replace the term "composting" with the term "compostable organic materials handling," and simplify the the permitting tiers by eliminating both the Registration and the Standardized permits. These changes would accompany allowable volume increases for agricultural, green and research composting operations within the EA Notification permit. Also in this proposal, the classification of feedstocks has been altered to include the elimination of the "Clean Green" classification, a revised "Green Material" classification and a new "Food/Green" classification. See http://www.ciwmb.ca.gov/Rulemaking/organics/default.htm

The Commission will consider revisions to its Long Term Strategy for the Class I Area Visibility Protection Element of the State Implementation Plan (SIP) regarding resolution of the Certification of Visibility Impairment in the Mount Zirkel Wilderness Area for the Craig Power Generating Station. The Commission will consider a proposal to establish emission limits, schedules for compliance, and reporting requirements as an alternative to the process of making regulatory determinations such as the identification and application of Best Available Retrofit Technology (BART). Hearing date is April 19. See http://www.cdphe.state.co.us/op/Visibility_LTS_02_01.htm

DEP has put forth a legislative proposal to achieve significant reductions in environmental mercury following a framework established by the New England Governors and Eastern Canadian Premiers. DEP’s legislative initiative includes the following components: establishing an Interstate Clearinghouse to help coordinate the identification of products containing mercury; requiring manufacturers of mercury products to notify the DEP as to the content of mercury in their products; prohibiting the future sale of mercury-added novelty items, mercury fever thermometers (except by prescription), bulk elemental, chemical, or mercury compounds in schools; phasing out of mercury-added products with the effective date of the phase-out based on content; labeling of products that have had mercury added; banning the disposal of mercury products other than by recycling or to a proper hazardous waste disposal area; and implementing a comprehensive public education, outreach, and assistance program for the public, manufacturers, businesses, schools and waste management entities. See http://dep.state.ct.us/whatshap/press/2001/mf0125.htm and http://dep.state.ct.us/whatshap/press/2001/mf0130.htm

Proposed regulations will implement the Everglades Forever Act by mandating a 25% reduction in the total phosphorus load discharged from the Everglades Agricultural Area. See http://www.sfwmd.gov.rules

DEQ is seeking comment on three draft guidance documents. Methods used by DEQ to evaluate physiochemical, physical habitat and biological data on water bodies are described in the “Water Body Assessment Guidance” draft document. In addition, the document outlines various strategies DEQ will use to determine water quality impairment. Two additional draft documents, “Idaho River Ecological AssessmentFramework” and “Idaho Small Stream Ecological Assessment Framework,” detail DEQ’s technical methods used to assess the aquatic life of rivers and streams. Comments due May 1. See http://www2.state.id.us/deq/news/jan29_01a.htm

Report, "Risks from Large-Scale Livestock Operations," recently issued by the Department. The Report notes that "(e)xposure to human pathogens and other microorganisms from animal manure in surface water is not likely to have a significant impact on human health because the few human pathogens in manure would not likely survive the distances to designated recreation areas." But the director of the Department seemingly rejected the study's conclusions, and called for more research. "As I've said, I feel in my gut there is a connection between large animal confinement operations and human health problems," said Dr. Stephen Gleason, "and I look forward to seeing the data that would support it. As a physician who grew up in rural Iowa, I know first-hand how hard it is to live near one of these operations, and I've heard it from patients," he said. Gleason also said that psychological and other effects are real and can cause serious problems. See http://www.idph.state.ia.us/news_rel/2001/animal.htm

Dept. of Natural Resources-Envtl. Protection Commission

Proposed Regulations-Water Quality

Proposed amendments to Chapter 61, “Water Quality Standards,” Iowa Administrative Code. The proposed amendments address U.S. EPA disapproval of various changes made to the water quality standards from July 1992 through January 1999 and are proposed to avoid federal (EPA) promulgation of water quality standards (WQS) for Iowa. Until such time as EPA approves state-adopted WQS, the WQS are not effective for the purpose of carrying out the federal Clean Water Act. The Region VII EPA review of all post-1992 WQS changes adopted by the Commission resulted in the approval of most of the adopted standards but disapproval of some items. The disapproved items generally fall into the following broad categories: removal or “downgrades” of designated uses for water bodies without proper documentation; numeric water quality criteria not included or improperly calculated; and a provision of the antidegradation policy dealing with drainage ditches. The amendments now being proposed will, if adopted, effect the following changes: (1) Class A (Primary Contact Recreation) use designations will be reestablished for eight water bodies or water body segments; (2) A Class C (Drinking Water Supply) use designation will be reestablished for Mystic Reservoir (Appanoose County); (3). Numerical criteria will be established for endosulfan, bromoform, chlorodibromomethane, chloroform, and di–chlorobromomethane. The existing WQS either do not have numeric values for these compounds or EPA feels the established values are inconsistent with EPA guidance; (4). A provision in the antidegradation policy that exempts the repair and maintenance of a drainage district ditch from the policy will be removed. EPA disapproved this provision (adopted by the Commission in October 1993) on the basis of inconsistency with the requirement that WQS, including antidegradation provisions, apply to all waters of the state. Written comments are due Mar. 19. See http://www.legis.state.ia.us/Rules/2001/Bulletin/acb010207.html

Proposed 402 KAR 3:030, Kentucky Agriculture Water Quality Plan Document. The subject matter of this administrative regulation is the incorporation by reference of Best Management Practices, Section 1,Silviculture, contained in "The Kentucky Agriculture Water Quality Plan," as amended on January 1, 2001.Public hearing will Feb. 27, if requested by Feb. 17. See http://162.114.4.13/kar/notofint.htm

Dept. for Envtl. Protection, Division of Water

Proposed Regulations

The Statement of Consideration for the Dec. 21, 2000, public hearing on eight proposed new and amended regulations relating to Kentucky’s Drinking Water Program for Public and Semipublic Water Supplies was filed on Feb. 1, 2001. Most of the changes are required by the Safe Drinking Water Act (SDWA). See http://water.nr.state.ky.us/dow/dwhome.htm

The rule changes incorporate the concept of universal waste into the Hazardous Waste Management rules and the Solid Waste Management rules. The rule tailors the requirements specifically to the type of waste, requires recycling of the waste (with some exceptions), and is designed to remove these wastes from the typical mismanagement scenarios. The waste types included in the rule are batteries, cathode ray tubes, lamps, mercury containing thermostats, and totally enclosed non-leaking polychlorinated biphenyl ballast. See http://www.state.me.us/sos/cec/rcn/apa/notices/013101.htm

Amendments to Regulation .10 and new Regulation .04-1 under COMAR 26.08.02 Water Quality, and amendments to Regulation .04 under COMAR 26.23.01 General. Regulation .01 under COMAR 26.08.01 General and Regulation .05-1 under COMAR 26.08.02 Water Quality were withdrawn and will be proposed with substantial revisions at a later date. See https://constmail.gov.state.md.us/comar/dsd_web/default.htm (Jan. 26 issue).

The Secretary of Agriculture proposes to amend Regulations .06 and .12 under COMAR 15.20.04 Nutrient Management Certification and Licensing; amend Regulations .01,.02, .04, and .05 under COMAR 15.20.06 Nutrient and Commercial Fertilizer Application Requirements for Agricultural Land and Land, Including State Property, Not Used for Agricultural Purposes; amend Regulations .02 —.04 and .06 under COMAR 15.20.07 Agricultural Operation Nutrient Management Plan Requirements; and amend Regulations .02 and .04 —.06 under COMAR 15.20.08 Content and Criteria for a Nutrient Management Plan Developed for an Agricultural Operation. The purpose of this action is to amend regulations pursuant to legislative changes made to the Water Quality Improvement Act of 1998 during the 2000 session of the General Assembly, and to update the plant nutrient recommendation requirements in accordance with the most recent findings from the University of Maryland Cooperative Extension. Comments are due Feb. 26. See http://www.mde.state.md.us/wqstandards/index.html

The Department is proposing to rescind R 336.1913 and R 336.1914 relating to emissions from malfunction, start-up, and shutdown of source processes and/or process equipment (2001-001EQ). Section 5509 of Act 451 required the adoption of these rules, but the U.S. EPA found them to be in non-conformance with both Section 110 of the federal Clean Air Act and Title 40 C.F.R. Part 70, requirements for the Title V Renewable Operating Permit Program. See http://www.deq.state.mi.us/cal/dq012901.htm

Proposed amendments to petroleum liquid storage, loading and transfer standards for the Kansas City Metropolitan Area (10 CSR 10-2.260), to ensure consistency with 10 CSR 10-5.220. Public hearing Feb. 6; written comments due Feb. 13. See http://mosl.sos.state.mo.us/moreg/2001/v26n1/v26n1b.pdf

Proposed permanent amendment to NAC 445B.001 to 445B.395, the air pollution control regulations. Amended is NAC 445B.194, which limits the criteria for temporary sources. NAC 445B.287 redefines the requirement when an operating permit or permit to construct is required. NAC 445B.288 redefines insignificant activities. NAC 445B.290 requires new stationary Class I sources to submit an application. NAC 445B.295 redefines the requirements for compliance plans. NAC 445B.316 amends the description of emissions trading to be modified to ensure consistency with 40 CFR Part 70 and provides conditions governing a permit shield. And, finally, NAC 445B.331 is amended for change of location fees for Class I and II sources requiring 10 days advanced notice. Will be taken up at Feb. 15 meeting of the Environmental Commission. See http://www.state.nv.us/ndep/sec/p2000-12.pdf

Proposed temporary amendment to NAC 445B.001 to 445B.395, the state air pollution control permitting program. The proposed temporary regulation amends NAC 445B by creating and defining a new classification of operating permits. The new Class III permit will provide eligible sources (those emitting 5 tons or less of specific pollutants) a streamlined permitting process, which includes accelerated permit review and issuance and lower permitting fees. This regulation will provide regulatory relief for small quantity sources. Will be taken up at Feb. 15 meeting of the Environmental Commission. See http://www.state.nv.us/ndep/sec/t2001-05.pdf

Proposed Regulations-Solid Waste

Proposed temporary amendment to NAC 444A.005 to 444A.470 to extend programs for separating at the source recyclable material from other solid waste to include public buildings in counties with populations greater than 100,000. The proposed temporary regulations add for public buildings the minimum standards and a model plan which were previously established for the source separation of recyclables at residential premises. Definitions for public building, paper, and paper product are added. NAC 444A.120 is proposed to be amended to add public buildings and 444A.130 is amended to provide for a municipality to make available a source separation of recyclable materials at public buildings. Will be taken up at Feb. 15 meeting of the Environmental Commission. See http://www.state.nv.us/ndep/sec/t2001-03.pdf

DEP is seeking comments on a initiative designed to expedite development and redevelopment projects in urban areas and municipalities where growth is targeted under state and local master plans. The proposal would allow municipalities with a certain state designation to obtain department approval of a sector permit. Eligible municipalities are those either containing a Governor's Designated Urban Coordinating Council neighborhood, or having gone through the center designation, endorsed plan, or regional plan process with the State Planning Commission. After demonstrating that their land use ordinances guarantee environmentally sound land use decisionmaking and assuring the protection of the state's natural resources, these municipalities could obtain DEP approval of a sector permit and incorporate the state's authorization under the permit into their actions under the Municipal Land Use Law. DEP is seeking comments through Mar. 16; comments received will be used in developing a proposed regulation that subsequently will be published for more extensive public review and comment. See http://www.state.nj.us/dep/special/sector/

Final Regulations-Water Quality

Standards will require new developments using septic systems to undergo the same environmental assessments as proposed new sewer service areas. The rule, known as Subchapter 6 of the Water Quality and Watershed Management Rules, will be published in the New Jersey Register Feb. 20 and becomes effective March 20. The rule applies to residential developments of six or more units and commercial development discharging 2,000 gallons of wastewater or more per day into the ground. See http://www.state.nj.us/dep/newsrel/releases/01_0006.htm

Permit to install and plan approval received from the Middlesex County Utilities Authority (MCUA) of Sayreville, New Jersey, to distribute de-watered sewage sludge in all counties in the state of Ohio. The application would allow the distribution of a maximum of 10,000 dry tons per year of sewage sludge. See http://www.epa.state.oh.us/pic/nr/2001/january/mcua.html

DHEC proposes to revise the regulations to include requirements promulgated under the National Primary Drinking Water Regulations: Public Notification Rule, and the Radionuclide Rule. The Public Notification Rule revises current public notification procedures requiring public water systems to notify the public any time a water system violates a primary drinking water regulation or has other situations posing a risk to public health. This rule applies to all public water systems. Comments due Feb. 26.

Proposed Regulations-Air Quality

61-62.96, Nitrogen Oxides (NOx) Budget Trading Program, 61-62.99, Nitrogen Oxides (NOx) Budget Program Requirements for Stationary Sources Not in the Trading Program and the South Carolina SIP (NOx SIP Call). See http://www.scdhec.net/eqc/

R315-2, General Requirements - Identification and Listing of Hazardous Waste; this rule change incorporates a decision by the District of Columbia Court of Appeals which ruled that the U.S. EPA had exceeded its authority when it attempted to regulate certain types of reuse and recycling of material processing secondary materials. This rule change adds "dredged material" to exclusions of hazardous waste when it is subject to a permit issued under the Water Pollution Control Act, it removes the wastes K140, K064, K065, K066, K090, and K091 from the list of wastes from specific sources and also removes U408. It also corrects some typographical errors. See http://www.rules.state.ut.us/publicat/bulletin/2001/20010201/23410.htm

R315-3, Application and Permit Procedures for Hazardous Waste Treatment, Storage, and Disposal Facilities; this rule change streamlines permitting for treatment, storage, and disposal of remediation wastes managed at cleanup sites, i.e., it allows the use of Remediation Action Plans as an alternative to traditional RCRA permits. See http://www.rules.state.ut.us/publicat/bulletin/2001/20010201/23411.htm

R315-7, Interim Status Requirements for Hazardous Waste Treatment, Storage, and Disposal Facilities; this rule change adds part of the language from 40 C.F.R. that was not included earlier and it finalizes National Emissions Standards for Hazardous Air Pollutants for three source categories referred to collectively as hazardous waste combustors. See http://www.rules.state.ut.us/publicat/bulletin/2001/20010201/23413.htm

R315-8, Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities; this rule change expands the use of Corrective Action Management Units and Temporary Units to include implementing clean up remedies at permitted facilities that are not subject to corrective action for solid waste management units and it finalizes National Emissions Standards for Hazardous Air Pollutants for three source categories referred to collectively as hazardous waste combustors. See http://www.rules.state.ut.us/publicat/bulletin/2001/20010201/23414.htm

R315-13-1, Land Disposal Restrictions; this rule change clarifies and/or makes technical corrections to the regulations promulgating Land Disposal Restrictions (LDR) treatment standards for wood preserving wastes, regulations promulgating LDR treatment standards for metal-bearing wastes, as well as amending the LDR treatment standards for soil contaminated with hazardous waste, a revision of the LDR treatment standards for hazardous wastes from the production of carbamate wastes, and revised treatment standards for spent aluminum potliners from primary aluminum production. See http://www.rules.state.ut.us/publicat/bulletin/2001/20010201/23415.htm

R315-14-7, Hazardous Waste Burned in Boilers and Industrial Furnaces; this rule change exempts secondary lead smelters from all provisions of the boilers and industrial furnaces requirements except for 40 C.F.R. 266.101 and incorporates the term "treatment" from Section 266.101(c) to clarify that fuel blending activities that are conducted in units other than 90-day tanks or containers also are subject to full regulation under Title R315. See http://www.rules.state.ut.us/publicat/bulletin/2001/20010201/23416.htm

The Environmental Board filed its Final Revisions to the Environmental Board Rules with theVermont Secretary of State. The revisions became effective on January 18, 2001 after the required 15 day waiting period. See http://www.state.vt.us/envboard/announcements.htm

Proposed regulations would address polluted runoff. For a summary of the rule changes, drafts of the proposed rules, and other information regarding restructuring of the state’s nonpoint source pollution programs, see http://www.dnr.state.wi.us/org/water/wm/nps/admrules.html Under the proposal, croplands within 1,000 feet of a lake or 300 feet of a stream or river will need to have vegetated buffers ranging from 10 feet to 35 feet wide along the waterway. Additional conservation measures will be required in concert with buffers of less than 35 feet wide. The previously proposed requirement to reduce erosion from these croplands to one-third of "T," the tolerable soil loss standard, has been eliminated. The proposal also includes criteria to determine whether farmers are eligible for financial assistance to use or install runoff control measures. The definition of new and expanding operations now focuses on how they manager the land rather than ownership. Roles and responsibilities of state and local governments for implementing and enforcing requirements for agricultural operations are addressed. Golf course, corporate campus, and other owners/operators of private property in urban areas who use fertilizers or pesticides on five or more acres of lawn must follow a plan to apply those materials.

A UNEP report concludes that worldwide financial losses resulting from increased numbers of and more severe tropical cyclones, loss of land due to rising sea levels, and damage to fishing stocks, agriculture, and water supplies worldwide could annually amount to at least $304.2 billion. See http://www.unep.org/Documents/Default.asp?DocumentID=192&ArticleID=2758

ASIA

Air pollution in Bangladesh kills at least 15,000 people a year, says a new World Bank report. According to the report, Bangladesh could save between $200 million and $800 million per year--from 0.7% to 3.0% of its gross national product--if air pollution in the nation's four major cities was reduced.

Taiwan's anti-nuclear-power Democratic Progressive Party, which holds a majority in the legislature, initially agreed on the resumption of construction of a controversial nuclear power station, then reversed course, continuing a constitutional crisis.

RUSSIA

Energy Minister Alexander Gavrin resigned after President Putin signed a decree accusing him of a "chronic inability to solve the sector's problems."

EUROPE

Germany's ruling government agreed to introduce an obligatory deposit system for drink cans and non-refillable glass and plastic bottles that would begin in 2002.

Environment Minister David Anderson introduced the Species at Risk Act (SARA) in the House of Commons. The main objective of SARA is to help prevent wildlife in Canada from becoming extinct and to provide for the recovery of species at risk. See http://www.ec.gc.ca/press/2001/010202_n_e.htm

A Canadian public works employees' union failed in its effort to intervene in a NAFTA dispute involving the denial of permit to Metalclad Inc. by a Mexican local government. The union had sought intervenor status under NAFTA Chapter 11.